Protecting the employer's interests - the implied duty of fidelity

A detailed investigation of the implied duty of good faith - how far does it go?

"It is a necessary implication which must be grafted on such a contract [of service] that the servant undertakes to serve his master with good faith and fidelity." (Per Smith LJ in Robb v Green [1865])

The terms of a contract of employment may be set down in writing or agreed orally between the parties. However, regardless of whether the express terms of the contract are detailed or largely silent, some terms are considered so essential to the employment relationship that they will be implied into every contract of employment. In our guidance note on constructive dismissal (Industrial Relations Law Bulletin 662 pp.2-12 - Constructive dismissal 1), we looked in detail at the implied term of trust and confidence. This guidance note deals with the related duty of fidelity, or good faith, owed by every employee to his or her employer.

The duty of good faith is necessarily implied into all contracts of employment as "it is impossible to suppose that a master would have put a servant into a confidential position of this kind, unless he thought that the servant would be bound to use good faith towards him; or that the servant would not know, when he entered into that position, that the master would rely on his observance of good faith in the confidential relation between them" (Robb v Green). Thus, the duty of good faith arises out of the obligation of loyalty "inevitably" owed by an employee to an employer (JA Mont (UK) Ltd v Mills).

It has been accepted that a seconded employee owes the same duty to the party to whom he or she is seconded as to his or her contractual employer (Macmillan Inc v Bishopsgate Investment Trust plc and others). By contrast, the duty of fidelity has no place in a consultancy arrangement under which the consultant contracts to provide his or her services on a self-employed basis (see the comments made in Euro RSCG SA v Conran), although an independent duty of confidence may be imposed if the circumstances so dictate.

Fiduciary obligations

Before going into any further detail, it is necessary to distinguish between the duty of fidelity and so-called "fiduciary" obligations. In general, a "fiduciary" is a person who is in a position of absolute trust and under an absolute duty to act in the interests of another (the principal). Examples include company directors and trustees. Generally speaking, fiduciaries must act in good faith, not make a profit out of their trust or place themselves in a position where their personal interest might conflict with that of their principal, nor must they act for their own benefit without the principal's informed consent.

At first sight, fiduciary obligations may seem similar to those imposed by the contractual duty of fidelity upon an employee, and this is not helped by the fact that, in some cases, judges have used the word "fiduciary" to describe the implied duty of good faith, or the duty of trust and confidence. As will be seen, however, fiduciary obligations arise independently of contract and may be more onerous than the duties implied into the contract of employment.

As was made clear in Nottingham University v Fishel and another, the mere fact that a person is an employee does not mean that he or she is a fiduciary. The purpose of the employment relationship is not to place employees in a position where they are obliged to pursue the employer's interests at the expense of their own. The relationship is contractual and dependent on the terms of that contract (Vokes Ltd v Heather).

It is, however, possible for contractual duties and fiduciary obligations to co-exist. For example, employees who are also directors under the Companies Act 1985 will owe both fiduciary duties, by virtue of their directorship, and implied duties that arise by virtue of the employment relationship.

Indeed, even non-directors may owe specific fiduciary obligations. The High Court in Fishel explained that circumstances might arise in the context of a particular employment relationship that will place the employee in the position of a fiduciary in relation to those circumstances. Thus, in Attorney General v Blake, fiduciary obligations fell upon a member of the secret services upon his receipt of, and in relation to, confidential information. Furthermore, every employee is subject to the principle that he or she should not accept bribes and will have to account for them.

In Fishel, a scientific director (although not in the statutory sense) responsible for managing a team of embryologists was found to be under fiduciary obligations when he directed them to do work for his own benefit rather than for the benefit of his (and their) employer. This was because he was clearly putting himself into a situation where there was a potential conflict of interest between the specific duty to his employer to direct his team to work for the benefit of the employer, and his own financial interests. However, by contrast, he was not under fiduciary obligations when he worked abroad for his own benefit, as he was under no contractual obligation to carry out overseas work for his employer and did not gain the work by virtue of his position as the embryology scientific director of the university.

The distinction between fiduciary and contractual obligations is important, as there are differences in scope, duration and the remedies that may be imposed for breach. Where relevant to this guidance note, these differences will be discussed below.

Scope

The scope of the implied duty of fidelity will vary according to the facts of each case, taking account of the status of the relevant employee (Hivac Ltd v Park Royal Scientific Instruments Ltd) and the particular nature of the contract (Vokes Ltd v Heather). As such, the practical difficulty in any given case is to identify how far the implied duty of fidelity extends. For this reason, employers often include express terms in the contract, not only to widen the scope of protection but to clarify matters otherwise covered by implied obligations. Such express terms will be explored in the second part of this guidance note. For the purposes of this part, we will concentrate on the position where the contract of employment is silent or where any such express terms have been held to be unenforceable, requiring employers to fall back on the implied term of fidelity.

Although the limits of the implied obligation are imprecise, it impacts in the following areas:

trade secrets and other confidential information;

competition and solicitation of customers, clients or suppliers;

disclosure of information; and

secret profits.

Duration

As a term implied into the contract of employment, the duty of good faith rests upon an employee until the termination of that contract. So intrinsically is the duty linked to the employment relationship that it cannot survive its cessation. As put by Hawkin J at first instance in Robb v Green, "the dividing line between owing his master a duty and owing him none is that imperceptible period of time between the termination of his service and the moment he acquires freedom of action after his service has terminated". Once the employment relationship has ended, there remains only a limited obligation not to use or disclose trade secrets or information so highly confidential that it can be equated to a trade secret. This is discussed further below.

Fiduciary obligations

By contrast, fiduciary duties may survive the end of the fiduciary relationship. In Island Export Finance Ltd v Umunna, the High Court confirmed that even after their resignation, directors are precluded from usurping for themselves, or diverting to another, a maturing business opportunity which the company is actively pursuing, where the resignation was prompted or influenced by the wish to acquire that opportunity for their own benefit, or where it was their position with the company rather than a fresh initiative that led to the opportunity later acquired.

Garden leave

The conventional view is that the implied duty of fidelity continues more or less in full force during any period of so-called "garden leave". This is because the employee remains in employment, although he or she does not work during the notice period. Thus, in Balston Ltd and another v Headline Filters Ltd and another, the Court was of the view that the competitive conduct of the employee in question breached the implied duty of fidelity notwithstanding that he was on garden leave at the time. The Court did comment, however, that once on garden leave, the employee was no longer under any duty to take positive steps to further or advance the business, as his functions as an employee had ceased. This may cover the disclosure of information relevant to the business of the employer.

A controversial view emerged, however, in Symbian Ltd v Christensen at first instance. In that case, the Vice Chancellor expressed the view that garden leave brings to an end the employment relationship, although the contractual relationship continues. As the implied duty of fidelity arises as a result of the employment relationship between the parties, the Vice Chancellor was of the view that it was thus of no effect during any period of garden leave. The issue was not the subject of the subsequent appeal, and the Court of Appeal accordingly expressed no view. In the absence of any further authority, it is submitted that this decision should be treated with caution.

In Hutchings v Coinseed Ltd, the Court of Appeal found that an employee who went to work for a competitor during a period of garden leave was not in repudiatory breach of contract. However, the case seemed to turn very much on its own facts, the Court stating that the contract had been varied when the employer confirmed that the employee would not be required to work during the notice period. In the view of the Court of Appeal, there was not even an obligation for her to be available to work in an emergency. Thus, as there was no breach of confidentiality or any allegation of bad faith, the Court could not say that it was wholly inconsistent with her obligations for the employee to start working for a competitor.

In certain circumstances, an employer will act in breach of contract if it places an employee on garden leave without reserving the express power to do so in the contract. Thus, employers who seek to use garden leave as a method of controlling employees for a limited period are advised to include an express term in the contract. However, note that if the notice period is excessively long, the garden leave clause itself may be unenforceable. This issue will be covered in part two of this guidance note.

Need for express terms

The limited restrictions upon a former employee after his or her employment has terminated encourage most employers to impose express contractual restrictions that purport to limit the actions of a former employee for a period. The validity or otherwise of such "restrictive covenants" will be covered in part two of this guidance note.

CONFIDENTIAL INFORMATION

During the course of their employment, employees inevitably learn and discover information that their employer considers confidential, at least to some degree. This information may range from highly secret technical formulae to skill, know-how and information picked up on the job. In Faccenda Chicken Ltd v Fowler and others, the Court of Appeal confirmed that whilst the employment relationship subsists, employees are restrained by their obligations of fidelity from disclosing such information or using it for their own purposes. However, once the contract has been terminated, the implied duty of fidelity falls away, save for a prohibition on employees using the most highly confidential information acquired in the course of their employment.

Information in the public domain

Information that is a matter of public knowledge is not confidential. However, as the Court of Appeal pointed out in Saltman Engineering Company Ltd and others v Campbell Engineering Company Ltd, it is possible to have a confidential document that results from work done by the maker on materials which may be available for the use of anybody. What makes it confidential is that the maker has used his brain, and thus produced a result that can only be produced by somebody who goes through the same process. As the High Court said in Coco v AN Clark (Engineers) Ltd: "Something new and confidential may have been brought into being by the application of the skill and ingenuity of the human brain. Novelty depends on the thing itself, and not upon the quality of its constituent parts. Indeed, often the more striking the novelty, the more commonplace its components."

Information that does not have the necessary element of confidentiality will not be protected, even during employment.

The crucial distinction

In Faccenda Chicken, the Court of Appeal was concerned with determining whether a former employee could be restrained from using certain pieces of information. In considering this issue, the Court of Appeal upheld the distinction made at first instance between:

information which an employee must treat as confidential, either because the employer expressly states that it is confidential or is obviously confidential by its very character, but which, once learned, necessarily remains in the employee's head and becomes part of his own skill and knowledge; and

trade secrets, and other information of a sufficiently high degree of confidentiality as to amount to a trade secret.

The Court of Appeal stated that the second category may not cover information "which is only 'confidential' in the sense that an unauthorised disclosure of such information to a third party while the employment subsisted would be a clear breach of the duty of good faith".

The distinction is necessary because from it derives the various degrees of protection that an employer can enjoy. As the Court of Appeal in Faccenda Chicken established, information in the first category will be protected from misuse whilst the employment relationship subsists. Once employment ends, however, the employee will be free to use or disclose it. Only information in the second category will be protected from use or disclosure also by the former employee, said the Court of Appeal. Remember that we are dealing with the situation where the express terms of the contract are silent.

The distinction is also relevant to directors. In Island Export Finance Ltd v Umunna, the employer sought to argue that a former director was precluded from using and exploiting information on a market about which he learnt while he was employed. The High Court disagreed. In the same way as an ordinary employee, former directors are entitled to use their own skill and knowledge for their own benefit and in competition with their former employee after cessation of their appointment.

How to categorise confidential information

As information falling into the second category will be protected even after employment has ended, it is crucial that the employer can identify the specific pieces of information that constitute trade secrets or their equivalent (Lock International plc v Beswick and others). A failure to do so may well prevent an injunction from being granted (see below). How, then, can the two categories be distinguished?

The Court of Appeal in Faccenda Chicken emphasised that every case will depend on its own facts and circumstances. However, the Court went on to set out several factors that should be considered when determining into which category a piece of information falls. Attention should be paid to the following factors:

The nature of the employment - if confidential information is habitually handled in the course of a particular employment, a high obligation of confidentiality may be imposed as the employee can be expected to realise its sensitive nature to a greater extent than an employee who only rarely handles such information.

The nature of the information - secret processes of manufacture may obviously be regarded as trade secrets, but, said the Court of Appeal, innumerable other pieces of information are capable of being so, even though the secrecy may be short-lived. The fact that the information is restricted to a limited number of individuals may be relevant.

Whether the employer impressed upon the employee the confidentiality of the information - whilst this is not determinative, it will be relevant evidence in determining whether or not a piece of information is, or amounts to, a trade secret. (It is not, however, incumbent on an employer to point out to an employee the precise limits of that which it seeks to protect as confidential, and it is unrealistic, in this regard, to expect a small and informal organisation to adopt the same business disciplines as a larger and more bureaucratic concern - Lancashire Fires Ltd v SA Lyons & Co Ltd.)

Whether the relevant information can be easily isolated from other information which the employee is free to use or disclose - although the Court of Appeal did not regard this as conclusive, a fact relevant to the question of whether the confidential information was really a trade secret was that the alleged confidential information was part of a package, and that the rest of the package was not confidential.

On the facts of Faccenda Chicken, the Court of Appeal held that the information in question did not amount to a trade secret. The information comprised sales information such as the names and addresses of customers, the most convenient delivery routes, the normal orders and delivery times of individual customers and individual pricing variations. The employer's central argument was that the pricing information amounted to a trade secret in itself, and that, as a result, the whole package of information was also capable of protection.

The Court of Appeal did not agree. Although information about prices could well amount to a trade secret, the following factors weighed against the employer:

The sales information contained some material that the employer conceded was not confidential if looked at in isolation (such as the names and addresses of customers).

The price information was not clearly severable from the rest of the sales information.

Although the price information was of some value to a competitor, it could not reasonably be regarded as plainly secret or sensitive.

The sales information was necessarily acquired by the employees in order that they could do their work. Each salesman could quickly commit to memory the information relating to his or her area.

The sales information was not restricted to senior management or to confidential staff.

There was no evidence that the employer had ever given express instructions that any of the information was to be treated as confidential.

Applying Faccenda Chicken, the Court of Appeal in Brooks v Olyslager Oms (UK) Ltd held that the information disclosed by a former managing director after his resignation was neither a trade secret nor material so highly confidential that it required the same protection as a trade secret. The former employee disclosed to a third party that the company was insolvent, would only last a month and that the budgets were not believed by the holding company as they were too optimistic.

The Court of Appeal commented that during employment the duty of good faith may well have precluded disclosure. However, there was no evidence that the information was not in the public domain, nothing to suggest that the company had ever impressed upon the employee the confidentiality of such information, nor could it easily be isolated from other information that the employee would have been free to use and disclose. In the view of the Court of Appeal, the company had no right to prevent a former employee from disclosing to third parties the reasons for his or her resignation, even if those reasons were true and detrimental to the company.

Committing information to memory

It is often easier to identify highly confidential information that is in documentary form, such as a list of chemical formulae. Employees who take such a list during their employment for use after their employment ends will breach the implied duty of fidelity. The Court in Roger Bullivant Ltd and others v Ellis and others upheld the principle established in Robb v Green that the duty of fidelity will be broken if an employee makes or copies a list of the employer's customers for use after employment ends. This covered the theft of a card index of consulting engineers, local authorities or architects who referred work to the employer (Roger Bullivant); the value of the index was that it constituted a ready and finite compilation of names and addresses of those who had brought or might bring business to the employer.

Employees who deliberately memorise such a list for use after employment ends will also breach the implied duty of fidelity (Faccenda Chicken). There is no principle of law that information which is carried away in the head of the employee is something which they are free to use after employment has ended, and it does not necessarily follow that such information becomes part of the skill and knowledge of the employee that he or she is free to use (Johnson & Bloys (Holdings) Ltd and another v Wolstenholme Rink plc and another; Printers and Finishers Ltd v Holloway and others). If the information can fairly be regarded as a separate part of the employee's stock of knowledge that a man of ordinary honesty and intelligence would recognise as the property of the old employer, the employee will be restrained from using it (Printers and Finishers).

As Parker LJ explained in Johnson & Bloys, somebody may hit upon the combination of two ingredients after many years of research which produces an immensely valuable result wholly unknown to anyone else. An employee would have no trouble holding that information in his head, but it cannot be regarded as part of the ordinary skill and experience of that employee. By contrast, in Printers and Finishers, the fact that a former employee could recall features of a flock printing plant that were peculiar to his former employer was not readily separable from his general knowledge of the flock printing process and his acquired skill in manipulating that process. The employee could not be restrained from using or disclosing that information after his employment had ended.

In short, it is very difficult adequately to describe the distinction between the two categories outlined in Faccenda Chicken. As the Court of Appeal commented in Lancashire Fires: "It is plain that if an employer is to succeed in protecting information as confidential, he must succeed in showing that it does not form part of an employee's own stock of knowledge, skill and experience. The distinction [between the two categories] may often on the facts be very hard to draw, but ultimately the court must judge whether an ex-employee has illegitimately used the confidential information which forms part of the stock-in-trade of his former employer either for his own benefit or to the detriment of the former employer, or whether he has simply used for his own professional expertise, gained in whole or in part during his former employment".

Further examples of cases in which the issues have been discussed are set out below.

Whistleblowing

During employment, then, an employee is prevented from misusing or disclosing confidential information about the employer's business in the widest sense. However, employees will not be barred from making disclosures to regulatory authorities or to the Inland Revenue about matters within their remit (In Re A Company's Application). Since the introduction of the Public Interest Disclosure Act 1998, employees who wish to "whistleblow" about certain specified matters, and who do so using one of the specified procedures laid down in the Act, are protected from detrimental action taken against them by their employer. Further, if he or she can prove that they were dismissed for making such a disclosure, that dismissal will be automatically unfair and compensation will be uncapped. For further detailed information on the Public Interest Disclosure Act and relevant sections of the Employment Rights Act 1996, see Industrial Relations Law Bulletin 621, The Public Interest Disclosure Act 1998.

In Camelot v Centaur Communications Ltd, a company sought to identify an employee whom it believed had leaked confidential documents to a journalist. The Court of Appeal had to weigh the public interest in protecting a journalist's source with the legitimate and continuing interest of the employer in enforcing an obligation of loyalty and confidentiality against an employee who had made unauthorised disclosure and use of documents acquired by him during his employment. On the facts, the Court found in favour of the employer. Of significance was the fact that the information would have been made public by the employer within a week, leading the Court to believe that premature disclosure served only the private interest of the employee and the publication to which the information was disclosed.

Duty of the employer

Finally, the case of Dalgleish and others v Lothian and Borders Police Board supports the view that an employer will be prevented from revealing confidential information about its employees to a third party. The Data Protection legislation will also be of relevance here (see Industrial Relations Law Bulletin 605 pp.7-16, The Data Protection Act 1998).

COMPETITION AND SOLICITATION OF CUSTOMERS/SUPPLIERS

Employers will naturally be concerned about competition to their business, particularly if the threat arises from a current or former employee. Most will want to limit that threat as much as the law allows. In the absence of valid express terms, however, they must rely on the implied duty of good faith.

So, does that duty prevent employees from competing with their employer? The answer depends to some extent on whether the alleged competitive activity takes place during employment or after employment has ended.

During employment

Whilst the employment relationship subsists, the duty of good faith is in full force and effect. The EAT stated in Laughton and another v Bapp Industrial Supplies Ltd that "an employee whilst in his employment must not compete with his employer and must not work for another employer if the other employment would be inconsistent with his first employment". Thus, where an employee working on a contract won by his employer made a request to tender for that same contract when it came up for renewal, he acted in breach of the implied duty of fidelity as he was "competing with the employer while still employed" (Adamson v B&L Cleaning Services Ltd). And, in Thomas Marshall (Exports) Ltd v Guinle, a managing director was guilty of repeated and gross breaches of his duty of good faith when he travelled abroad on his employer's business and placed orders and sold goods from the employer's own customers and suppliers for the benefit of his own companies. He was also (arguably) in breach of his fiduciary duties. The case of Cook v Deeks and others established that company directors act in breach of their fiduciary duty when they take for themselves the benefit of a contract which they had been ostensibly negotiating on behalf of the company. In Thomas Marshall, it was arguable that the managing director had used the relationship he had established on behalf of the company for his own benefit.

Spare time

The situation is somewhat different when an employee competes in his or her spare time. The Court of Appeal dealt with this issue in Hivac, holding that employees continue to owe a duty of fidelity to their employer during their spare time. However, there is a difference of degree as to when that duty will be breached. The Court warned of the dangers of laying down concrete propositions and said that it was essential to consider each case on its own facts. In its view, the obligations of good faith might very well extend further in the case of one class of employee than it would in the case of others. Moreover, in some cases the very nature of the work undertaken by an employee might make it clear that the duties owed to the employer could not properly be performed if in his or her spare time he or she engaged in certain types of activity. For example, a solicitor's clerk undertaking work for another firm in his or her spare time might thereby give rise to a conflict of interest.

In giving judgment, the Court made it clear that it did not wish to place "undue restriction" on the right of a manual worker to make use of his or her free time to make a profit. What should rightly be restricted, in its view, was an employee "knowingly, deliberately and secretly . . . [doing] in his spare time something which would inflict great harm on his employer's business".

Thus, in Hivac there was a prima facie breach of duty where five highly skilled manual employees deliberately and secretly worked for a direct competitor of their employer during their spare time and for a prolonged period, in circumstances where they must have known that the interests of their employer would be greatly damaged by their actions. The Court of Appeal also emphasised that there was a danger of the first employer's confidential information being used by the employees for the benefit of the second employer. As stated by Morton LJ, it would be "very difficult to conceive that if the [first employer] were showing the employees a new and improved way of making midget valves, there would be no mention and no demonstration of that whatsoever to the second employer".

By contrast, in Nova Plastics Ltd v Froggatt no breach was found where an odd-job man worked for a competitor in his spare time. The nature of the work undertaken by the employee for the competitor was not contributing seriously to any competition. The EAT rejected the contention that any work for a competitor would be regarded as a breach of the duty of good faith and stated that there is no implication "other than that a man is expected to give loyal service and not to do anything which can cause substantial harm to his employer". The EAT emphasised that, had there been a clause in the contract requiring the employee to work overtime as necessary, the employee would not have been able to work for a competitor at a time when he should have been ready and willing to perform such overtime.

After employment

After employment has come to an end, so too does the duty of fidelity. Thus, a former employee is free to compete with his or her former employer and solicit their customers, suppliers or clients, as long as in so doing the limited duty not to misuse trade secrets, or confidential information that amounts to a trade secret, is not breached (Robb v Green; Wallace Bogan & Co v Cove and others). As the Court of Appeal in Wallace Bogan put it: "it is axiomatic that the general law affords no protection to an employer against an ex-employee soliciting the employer's customers."

By contrast, in certain circumstances a director's fiduciary obligations may continue beyond the termination of his or her directorship (see Island Export Finance Ltd v Umunna mentioned above).

Preparing to compete after employment has ended

Free to compete after employment ends, employees will often take preparatory steps towards setting up their own competing business before their employment has terminated. However, as the employment relationship subsists, the implied duty of fidelity is in full effect and employees run the risk of being found in breach of contract by their actions.

In this situation, then, when will an employee be in breach? In Robb v Green at first instance, Hawkin J made it clear that there is no absolute bar on taking preparatory steps towards setting up a competing business, provided that employees do not "fraudulently undermine [the employer] by breaking the confidence reposed in him [or her]". Hawkin J gave the following examples of conduct that might be acceptable: legitimately canvassing, issuing circulars, having a place of business in readiness, hiring servants. However, each case must be looked at on its own facts. In certain cases, such activities might amount, separately or cumulatively, to a breach of the implied term of fidelity (see below).

Whether or not alleged breaches take place in working hours will be significant, applying the general principles outlined above. Thus, "during his master's time the servant has to look after, not his own interests, but those of his master" (Wessex Dairies Ltd v Smith). Employees who take steps in preparation of setting up a competing business in working hours run a high risk of breaching the duty of fidelity. It goes without saying that such employees will also be in breach of the term dealing with working hours.

Each case will turn on its own facts. However, as the Court of Appeal commented in Lancashire Fires, "any employee with technical knowledge and experience can expect to have his spare time activities in the field in which his employers operate carefully scrutinised".

Finally, although directors will have fiduciary duties towards the company, they are under no greater obligation with regard to preparatory steps towards future competition than other employees, as long as there is no actual competitive activity whilst they remain directors (Balston).

Expressing an intention to compete

In Laughton and another v Bapp Industrial Supplies Ltd, the EAT stated categorically that an employee does not breach the duty of fidelity simply by indicating a future intention to compete with his or her employer, where he or she is still devoting their working time and talents to the employer's business. There is no prohibition on employees seeking future employment with a competitor of their present employer (Harris & Russell Ltd v Slingsby), and the EAT in Laughton saw no distinction between this situation and that where an employee is seeking to set up in competition on his or her own account. Likewise, in Balston, the fact that an employee (who was also a director) had manifested the desire to run his own business did not mean that he was acting in breach of the implied duty of fidelity. Neither was he acting in breach of his fiduciary obligations.

Approaching suppliers and customers

Whether or not approaching the employer's suppliers and/or customers will amount to a breach of the duty of fidelity depends on all of the circumstances of the case. In Laughton there was no breach when, in their spare time, employees wrote to their employer's suppliers stating that they were intending to start up in business and asking for price and product lists and the best terms that could be offered to them. This amounted to a simple enquiry rather than the placing of an order. The EAT emphasised that there was no suggestion that the letters had been written in working hours.

By contrast, in Wessex Dairies Ltd v Smith an employee was found to be in breach when, during working hours, he solicited the customers of his employer during the last week and on the last day of his employment for the purposes of his future business. The Court of Appeal in Hivac was of the view that even had the solicitation taken place in the employee's spare time, there would have been a breach of the duty of fidelity. Equally, the High Court identified a "flagrant" breach in International Consulting Services (UK) Ltd v Hart, where, in the course of his employment, a senior employee sought to obtain the business of a prospective customer for the benefit of his own company once he had left employment. And in Marshall v Industrial Systems & Control Ltd, a managing director was found to be in breach when, together with another key employee, he approached his employer's main client with a view to obtaining its business once he had left employment. It was not merely a plan; "concrete arrangements" had been made.

Reaching agreement with suppliers and customers

In most cases, an employee will be in breach of the implied duty of fidelity if an actual agreement is reached with customers and/or suppliers of the employer. In Balston, the employee crossed the line between acceptable preparatory steps and active competition when he successfully tendered for the future business of a customer of the employer. Again, in Lancashire Fires, a finance agreement was entered into by the employee and a prospective customer of the employer (albeit one which the employer was not capable of servicing at that time), under which the employee was provided with funds to develop a new technical process in return for providing exclusive sales of the product. Although the agreement had been reached in the employee's spare time, the fact that the employee had entered into the agreement supported the court's view that there had been a breach of the duty of fidelity. The employee's job with the employer involved participating in new development projects and there was a clear conflict of interest.

Finally, in Sanders v Parry there was found to be a breach when a major client of the employer approached the employee intimating that if he set up in business on his own account the client would transfer his business to him. The employee had entered into an actual agreement with the client and, in so doing, had placed himself in a conflict of interest. He had knowingly acted in a manner contrary to his employer's interests that was likely to cause great harm.

Obtaining financial backing

As stated above, in Lancashire Fires the employee obtained financial backing for the development of a technical process from a prospective customer of his employer. This supported the court's view that there had been a breach of the obligation of good faith. The judge at first instance stated that "it [was] not simply a financing agreement with a disinterested party such as a bank . . . what matters is that [the employee] did pursue the project, pursuant to the agreement, and he took advantage of the finance for that purpose." From this we may infer that obtaining finance with a disinterested third party may not of itself breach the implied duty.

Drafting a business plan

In Marshall, a draft business plan revealed concrete arrangements to compete and deprive the employer of its main client, so supporting the EAT's view that the employee was in breach of the implied obligation of fidelity. The EAT emphasised that it was not merely a plan; matters were underway to obtain that client's business. By contrast, in Balston the employee was not in breach when he prepared a five-year plan and cash-flow analysis for a business he was considering running after his employment ended. The plan was not concrete and the employee had taken no steps at that point to make it reality. Nor was there a breach in Saatchi & Saatchi Company plc and others v Saatchi and others, when a director entered into heads of agreement to acquire shares in a competing company that made it clear that the agreement would only come into full effect when the director was free of all restrictions arising from his employment and/or directorship.

Renting premises

In Balston, the fact that the employee had entered into an agreement to lease premises did not breach the duty of fidelity, as at the time the employee had not yet decided upon the nature of the business that he was going to conduct. The building was still only an empty shell when the employee embarked upon the steps that were held to be in breach. By contrast, in Lancashire Fires, the fact that the employee had rented premises and was actively involved in improving and equipping them supported the court's view that the implied duty of fidelity had been breached.

Approaching employees with offers of future employment

Whether or not this will breach the duty of fidelity is a matter of fact and degree. In Searle & Co Ltd v Celltech, the High Court commented that it saw nothing intrinsically wrong with the making of personal approaches in a highly specialised sector, as long as they did not amount to a suggestion that someone leave and take highly confidential information away with them. In Tither Barn Ltd v Hubbard, the EAT upheld a decision that no breach had occurred when an employee approached another employee with an offer of future employment, as it constituted "a mere discussion for the future, an intention of Mr Hubbard to set up in business and an invitation that in due course Mr Perrett might care to join him". The EAT stated, however, that it would have been open to the employment tribunal to come to a different view.

Much, then, will depend on the circumstances of the advance. When a colleague approaches an employee whom he or she knows is thinking of setting up in business and says that he or she is dissatisfied, there may well be a breach of duty if the employee makes an offer of future employment. This is because the duty of fidelity requires that the employer should be informed of the colleague's dissatisfaction, giving it a chance to remedy the situation (Sanders v Parry). Likewise in similar circumstances, when a meeting is arranged by a third party between the two employees (Balston). Conversely, in Balston, there was no breach when a colleague approached the employee thinking of setting up a company, was subsequently summarily dismissed and then offered his services to the future company. Finally, in Marshall, an approach made to another key employee to join a business with the aim of depriving the employer of its main client supported the view that a breach had occurred.

Misusing confidential info

Misuse of the employer's confidential information in preparation to compete with the employer will breach the duty of fidelity if it falls within the principles outlined above. So, in Laughton, the EAT said that evincing an intention to set up in competition, or join a competitor, involved no breach of contract unless there was a valid express term in the contract or the employee was intending to use the confidential information of the employer other than for the employer's benefit. Employees can carry away information in their heads, provided that it has not been deliberately memorised for the purposes of future competition, but may not copy information onto scraps of paper or steal confidential documents for that purpose (Universal Thermosensors Ltd v Hibben and others).

DISCLOSURE OF INFORMATION

Employees will often obtain information of interest to their employers, whether commercially or in relation to their workforce. Such information may involve the misconduct of colleagues or of the employee him or herself. In such circumstances, does the duty of good faith require disclosure?

An employee is not bound in all circumstances to disclose to his or her employer any matter relating to the employer's affairs, regardless of the manner in which the employee obtained the information (Macmillan Inc v Bishopsgate Investment Trust plc and others). In order for the employer validly to demand disclosure of information, the employee must have obtained it in the course of his or her employment.

By way of example, in Cranleigh Precision Engineering Ltd v Bryant and another, the managing director of a company was in breach of his implied obligations when he failed to disclose important commercial information about a rival patent that he had received in the course of his employment in order to make use of that information for his own benefit.

In Industrial Development Consultants Ltd v Cooley, a managing director was found to be in breach of his fiduciary obligations when he failed to disclose relevant information that he had received in the course of his dealings in trying to win a contract with a potential client. The client had told him that it disliked the set-up of the company and was not prepared to deal with it. Instead, it began talking to him about the prospects of him performing the contract in his private capacity. Instead of disclosing this information to the company, the director severed ties with the company, pretending to be on the verge of a breakdown. The client offered him employment with total responsibility for the contract they had been discussing. By putting his personal interests as a potential contracting party into conflict with his obligations as managing director, and failing to disclose information that he used for his own profit, he was in breach of his fiduciary obligations.

By contrast, a director does not breach his or her fiduciary obligations by failing to disclose a future intention to compete where there is no such conflict of interest (Balston; Framlington Group plc and another v Anderson and others).

Misconduct

Is there a duty on employees to disclose to their employers their own misdeeds or breaches of contract? A majority of the House of Lords held in Bell and another v Lever Brothers Ltd and others that there is not, at least where there is no evidence of fraudulent concealment. As was pointed out in Nottingham University v Fishel and another, a specific fiduciary obligation may require disclosure of the fact that, for example, an employee has received outside profits in breach of that duty (as he or she is under a duty to account for such profits). But, without that obligation, there is no duty on the employee to make such information known.

Similarly, there is no general rule that employees are required by their obligations of good faith to disclose the misconduct of fellow employees (Swain v West (Butchers) Ltd; Sybron Corporation and another v Rochem Ltd and others). However, depending on the circumstances of a particular situation, such a duty may arise and it matters not that, in so doing, the employee thereby incriminates himself (Sybron). So, in Sybron, a senior executive with control over the Corporation's European Zone was under a duty to report his knowledge of a continuing fraud against his employer carried out by his subordinates, notwithstanding the fact that he too was implicated. Under the express terms of the contract, there was a recognised reporting procedure under which the executive was to report on matters within the European Zone every month. Likewise, in Swain, a general manager under an express duty to "do all in his power to promote, extend and develop the interests of the company" was under a duty to inform the board of the misdeeds of his direct superior.

The seriousness of the misconduct and the seniority of the employee will be significant, particularly where the contract is silent. As the EAT put it in The Distillers Company (Bottling Services) Ltd v Gardner, it is asking a lot of an employee (in this case, a fork-lift truck loader) to report the misdemeanours of colleagues. In the view of the EAT, if the employer expects this of its employees, it should clearly spell it out in its disciplinary rules.

SECRET PROFITS

As part of their obligations of good faith, employees are under a duty not to make a secret profit from the use of the assets of their employer. This includes the use of the employer's confidential information (Boston Deep Sea Fishing and Ice Company v Ansell). The House of Lords in Reading v AG confirmed that there is no need for a strict fiduciary relationship; in any case, Lord Porter suggested that in this context the words "fiduciary relationship" are used in a loose sense, and include a case where a servant gains from his employment a position of authority which enables him to obtain the sum which he receives. This comment is akin to that made in Fishel regarding specific fiduciary obligations arising from within the employment relationship.

Where an employee is also a director of the company, he or she will obviously fall under fiduciary obligations. In Boardman v Phipps, the House of Lords set out the "fundamental rule of equity that a person in a fiduciary capacity must not make a profit out of his trust, which is part of the wider rule that [he] must not place himself in a position where his duty and his interest may conflict". However, unless the director is using company property or information that has come to him or her in their capacity as a director, there will be no liability regarding profits made out of a contract with which the company has no concern (Bell and another v Lever Brothers Ltd and others).

In Framlington, directors of a company accepted an offer of future employment from a rival company, which then entered into negotiations for the sale of the business of the private client funds managed by those directors. The directors were instructed by their employer not to take part in those negotiations. Separately, they negotiated their remuneration with their future employer to include a number of shares calculated by reference to the value of managed funds transferred. The Court held that there was no breach of fiduciary obligations and that the shares did not amount to a secret profit. The directors acted in good faith throughout and had been expressly instructed to stay out of the company-to-company negotiations. They were free to negotiate whatever price they could for their future services.

By contrast, there was a breach of fiduciary obligations where a managing director placed himself in a position where his duty to the company and his personal interest conflicted, by setting up an arrangement by which he falsified records to enable his brother to make a profit in the disposal of old company vehicles. This breach justified his dismissal (The Maintenance Co Ltd v Dormer).

MISCELLANEOUS

In the context of industrial action, the Court of Appeal in Ticehurst and another v British Telecommunications plc found that a manager evincing an intention to take part in "work-to-rule" industrial action was in breach of her obligations of faithful service as she was under an obligation to exercise any discretion that arose in the course of her managerial responsibilities in the interests of her employer, not in a manner most likely to disrupt the employer's business or cause the most inconvenience.

Employer's duty of good faith

In Newns v British Airways plc, the Court of Appeal noted that the obligation of good faith implied into every contract of employment lies also upon the employer. In the words of Steyn LJ (as he then was), good faith simply conveyed "the notion of fair dealing". The claimants in that case were seeking an injunction to prevent the transfer of part of the employer's business to a subsidiary company until proper consultation had taken place. The case failed on other grounds, but, in the course of giving judgment, the Court of Appeal commented that conceptually it might have been possible for the employees to argue that the employer was in breach of the obligation of good faith.

More recently, the High Court in Hagen and others v ICI Chemicals Ltd and others confirmed that the implied duty of good faith falls also upon the employer. In Hagen, the court dealt with several claims relating to alleged negligent misrepresentations made in connection with the transfer of an undertaking. One claim advanced was that the employer was thereby in breach of the implied duty of good faith. However, on the facts this added little to the parallel claim that the employer had acted in breach of the implied duty of trust and confidence. In Malik and another v Bank of Credit and Commerce International SA, the House of Lords confirmed the existence of such a duty, which would be breached by conduct that, objectively viewed, had the effect of destroying or seriously damaging trust and confidence. It may well be that the employer's duty of good faith will, more often than not, be covered by the duty of trust and confidence, although as Elias J stated in Hagen, there might be circumstances when a duty to act fairly could arise, which could be broken by an unfair or procedurally defective exercise of discretion falling short of conduct which would be a breach of trust and confidence.

REMEDIES

If an employee breaches his or her duty of fidelity, the employer will be able to claim for damages to put it in the position it would have been in but for the breach of contract. This is the standard contractual remedy. However, employers faced with a continuing breach may care more about taking practical steps to safeguard their businesses. It may wish to dismiss current employees. It may also seek an injunction to prevent, for example, the use of its confidential information by an employee going into competition. In some cases it will be possible for an employer to proceed not only against the employee but also against the new employer for procuring a breach of contract.

This section will briefly discuss the various options open to employers. It is not, however, intended to be an exhaustive guide.

Dismissal

Employers may dismiss an employee who is in breach of his or her implied obligations of fidelity. To prevent a finding of unfair dismissal, the employer must show that it had a potentially fair reason to dismiss under s.98 of the Employment Rights Act 1996. The reasons most likely to be relevant are misconduct and the general catch-all known as "some other substantial reason" ("SOSR"). The employer must act reasonably in treating that reason as sufficient reason to dismiss.

Misconduct

By way of example, in Laughton and another v Bapp Industrial Supplies Ltd employees were dismissed because they intended to set up in competition with the employer and had contacted the employer's suppliers asking for price lists. The dismissals were unfair as there had been no breach of the implied duty of fidelity such as to amount to gross misconduct. The EAT commented that had the employers reasonably believed that the employees were compiling confidential information, such as making lists of customers for use after their employment ceased, the employer could have dismissed them for breach of the implied term.

SOSR

Where there is no misconduct, an employer may need to rely on SOSR. Thus, employers may dismiss an employee who marries someone employed by a rival company, in order to protect confidential information (Skyrail Oceanic Ltd t/a Goodmos Tours v Coleman). In the same way, the dismissal of an employee whose spouse sets up a rival business may be justified (Foot v Eastern Counties Timber Co Ltd East Harling). Employers must take care to follow a fair procedure and consult with the employee affected, particularly where he or she is a trusted employee of many years' service.

In line with general principles, a compensatory award for unfair dismissal will not be reduced on the basis that, following termination of employment, the employees disclosed confidential information allegedly in breach of contract (Soros and Soros v Davison and Davison).

Injunctions

An injunction is an order made by the court at its discretion to force a party to perform a certain activity or prevent it from doing so. Breach of such an order may lead to imprisonment for contempt of court.

Injunctions may be sought as a final remedy at trial. More usually, however, they are obtained on an interim basis where the employer needs urgently to protect its business.

Interim injunctions

When an employer believes urgent action is necessary to protect its business, it may apply to court for an interim injunction. In most cases involving the implied duty of fidelity, this will involve asking the court to restrain the use of the employer's confidential information. The party seeking the injunction will make a cross-undertaking in damages, promising to compensate the party constrained by the injunction for any loss if the court later concludes at trial that relief should not be granted.

The granting of interim injunctions is now governed by s.25 of the Civil Procedure Rules and the related practice direction. However, it is probable that the courts will continue to follow the guidance of the House of Lords set out in American Cynamid Co v Ethicon Ltd. In essence, American Cynamid requires the employer to establish that it has a good arguable claim to the right it seeks to protect and that there is a serious issue to be tried. In considering this issue in the context of confidential information, the question is not whether there is a possibility of effective competition until trial but whether information that the employer is entitled to protect would be lost without the aid of an injunction (Johnson & Bloys). The court will then consider the balance of convenience, asking whether damages would provide an adequate remedy and whether the granting of an injunction would do more harm than good. In exercising its discretion, the court is required to take account of the right to freedom of expression by virtue of s.12 of the Human Rights Act 1998.

In some cases, it will not be possible for a full trial to be held before the period for which the employer claims to be entitled to an injunction has expired. In such circumstances, a court is entitled to explore at greater length the applicant's chances of success (Lansing Linde Ltd v Kerr).

For an employer to succeed in obtaining an injunction preventing the use of confidential information, it will need specifically to identify the information it is entitled to protect. This will involve consideration of the factors outlined above in Faccenda Chicken. A court will not accept generalities without substance. As Lord Abernethy commented in Lux Traffic Controls Ltd v Healey and another, "it is trite law that a person subjected to interdict [the Scottish equivalent to an injunction] must know precisely what it is he is interdicted from doing."

Where, however, the employee has removed documents containing trade secrets, a court may grant an injunction regardless of whether this would have the effect of preventing the employee from using his general knowledge. In Johnson & Bloys, the Court of Appeal issued such an injunction as the difficulties of the employee were entirely of his own making through the improper removal of the employer's documents.

A court will not normally order an injunction that would interfere with the rights of innocent third parties. However, in PSM International plc and another v Whitehouse and another the Court of Appeal granted an injunction restraining the fulfilment of contracts made with third parties. It did so because the contracts were made when the employee in question was still in employment and in breach of his duty of fidelity, and because it was arguable that the third party was on notice that the employee was acting in breach of contract.

A court will not order an injunction where damages would provide adequate compensation. Thus, in Universal Thermosensors Ltd, although the employer was entitled to an interim injunction against further misuse of its confidential information, it was not entitled to an injunction in relation to misuse that had already occurred. This would have put the employer into a better position than would have been the case had the misuse not occurred, as in those circumstances the employee could still have contacted its customers by going through a more laborious and time-consuming process of memory and the use of directories. Damages were the appropriate remedy.

Search orders

Where an employer suspects that a former employee is likely to destroy evidence of his or her misuse of confidential information, the employer may apply for a "search order", allowing business or residential premises to be searched for evidence so that it can be seized. As this is a draconian order, it is subject to various safeguards, set down in the practice direction relating to Part 25 of the Civil Procedure Rules. Care must be taken by the courts to ensure that a search order is not made unless there is real evidence that evidence would be destroyed.

Springboard relief

In certain circumstances, an injunction will be ordered to prevent use of information that is no longer confidential. If an employee has gained a head-start through the misuse of confidential information during employment, he or she will be prevented from using it for a limited period, even though that information has fallen into the public domain. As Roxburgh J stated in Terrapin Ltd v Builders' Supply Co (Hayes) Ltd and others: "a person who has obtained information in confidence is not allowed to use it as a springboard for matters detrimental to the person who made the confidential communication, and springboard it remains even when all features have been published or can be ascertained by actual inspection by any member of the public."

The Court of Appeal stated in Roger Bullivant that a springboard injunction should not normally extend beyond the period for which the unfair advantage may reasonably be expected to continue.

Damages

Where damages provide an adequate remedy, they will be awarded to place the employer into the position it would have been in but for the breach of contract. This may be difficult to determine on the facts.

Where employees have misused the employer's confidential information, it is a question of fact whether customers have been gained as a result of that misuse. The theft of confidential information does not create an irrebuttable presumption that any business gained by the employee resulted from the wrongful use of that information, such that the employee is liable in damages (Universal Thermosensors Ltd). It must be remembered that in the absence of an express covenant, a former employee may validly solicit customers of their former employer.

Account of profit

As noted in Nottingham University v Fishel and another, an employee can be liable to account for all profits earned if his or her fiduciary duties (if any) are broken, but only liable to compensate for loss where the claim lies in contract (ie for a standard claim for breach of the implied duty of fidelity). An account of profit may be ordered for breach of fiduciary obligations, regardless of whether the principal has suffered a loss or whether it was in a position to take advantage of the particular business opportunity (Regal (Hastings) Ltd v Gulliver). By contrast, although the scientific director in Fishel was in breach of the express terms of his contract for accepting outside work without consent, the university had suffered no loss and thus received no damages. The employee was not under fiduciary obligations in respect of the outside work he undertook himself.

Where employees receive secret profits in breach of the principle set out in Boston Deep Sea Fishing and Reading v AG, they will be liable to account for that profit to their employer, even if the employer has suffered no loss. However, the implication seems to be that in such circumstances, specific fiduciary obligations are imposed (see above). Alternatively, the courts utilise the common law remedy of money had and received.

Recently, however, the House of Lords has held that in exceptional circumstances the law may order an account of profits for a breach of contract, even where the innocent party has suffered no loss and the wrongdoer is not in breach of a fiduciary obligation (AG v Blake). However, the facts of that case related to the profit received by a former member of the intelligence services who published his autobiography in breach of non-disclosure clauses in his contract. Lord Hobhouse, dissenting, warned that "if others are tempted to try to extend the decision of the present exceptional case to commercial situations . . . such a step will require careful consideration before it is acceded to." In Fishel, the High Court saw no reason why employment contracts should be treated any differently to commercial contracts when considering the issue of restitutionary damages.

Competition and solicitation

This box contains a summary of permitted and prohibited activities both during employment and after it has terminated. It is important to remember that each case will turn on its own facts; the following is provided for guidance only.

PERMITTED ACTIVITIES

During employment

Working for a competitor in employee's spare time where this is not inconsistent with the first employment and does not cause substantial harm to the first employer (Nova Plastics).

Evincing an intention to compete with the employer once employment has ended, either for another or on the employee's own account (Harris & Russell Ltd v Slingsby; Laughton).

Writing to the employer's suppliers during the employee's spare time, asking for terms, price and product lists for a future competing business (Laughton).

Obtaining finance from a bank for a future venture (by implication from a comment in Lancashire Fires).

Preparing a business plan and cash-flow analysis for a possible future business (Balston).

Entering into an agreement to lease premises for a possible future business (Balston).

Making approaches to colleagues to join a future business, particularly in a highly specialised field where such approaches are a common feature of recruitment (Searle). (Note that in some circumstances, approaching colleagues may breach the implied duty of fidelity).

After termination of employment

Competing with a former employer, either for another or on the employee's own account (Robb v Green; Wallace Bogan).

Soliciting customers, suppliers or employees of a former employer (Robb v Green; Wallace Bogan).

Making use of skill and knowledge acquired in the course of former employment (Faccenda Chicken).

PROHIBITED ACTIVITIES

During employment

Working for another employer during working hours (Laughton) or during hours during which the employee could be contractually required to perform overtime (Nova Plastics).

Working for a competitor in spare time where this causes substantial harm to the first employer (Hivac).

Actively competing with the employer (Adamson).

Placing orders and selling goods for the employee's own benefit in the course of employment (Thomas Marshall).

Soliciting the employer's customers for the purposes of a future competing business, whether or not in the employee's spare time (Wessex Dairies; Hivac).

Successfully tendering or entering into agreement with the employer's customers or suppliers for the purposes of a future business (Balston; Lancashire Fires).

Renting, improving and equipping premises in the course of taking concrete steps to set up a competing business (Lancashire Fires).

Offering future employment to a colleague who tells the employee he or she is dissatisfied with their current employment (Sanders).

Making a copy of, or deliberately memorising, confidential information for use in a future competing business (Robb v Green; Faccenda Chicken).

After employment has ended

Misuse of the former employer's trade secrets/highly confidential information (Faccenda Chicken).

Usurping a maturing business opportunity actively pursued by the former employer, where the director resigned to acquire that opportunity or gained it by virtue of his or her former position (this applies to directors - or other fiduciaries - only, as it involves a breach of fiduciary obligations) (Island Export Finance Ltd v Umunna).

Case list

Adamson v B&L Cleaning Services Ltd [1995] IRLR 193
Attorney General v Blake [2001] IRLR 36
American Cynamid Co v Ethicon Ltd [1975] 1 All ER 504
Balston Ltd and another v Headline Filters Ltd and another [1990] FSR 385
Bell and another v Lever Brothers Ltd and others [1932] AC 161
Boardman v Phipps [1966] 3 All ER 721
Boston Deep Sea Fishing and Ice Company v Ansell (1888) 39 Ch D 339
Brooks v Olyslager Oms (UK) Ltd [1998] IRLR 590
Camelot v Centaur Communications Ltd [1998] IRLR 80
Coco v AN Clark (Engineers) Ltd [1969] RPC 41
Cook v Deeks and others [1916] AC 554
Cranleigh Precision Engineering Ltd v Bryant and another [1964] 3 All ER 289
Dalgleish and others v Lothian and Borders Police Board [1991] IRLR 422
Euro RSCG SA v Conran The Times 2 November 1992
Faccenda Chicken Ltd v Fowler and others [1986] IRLR 69
Foot v Eastern Counties Timber Co Ltd East Harling [1972] IRLR 83b
Framlington Group plc and another v Anderson and others [1995] 1 BCLC 475
Hagen and others v ICI Chemicals Ltd and others [2002] IRLR 31
Harris & Russell Ltd v Slingsby [1973] IRLR 221
Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] 1 All ER 350
Hutchings v Coinseed Ltd [1998] IRLR 190
Industrial Development Consultants Ltd v Cooley [1972] 2 All ER 162
In Re A Company's Application [1989] IRLR 477
International Consulting Services (UK) Ltd v Hart [2000] IRLR 227
Island Export Finance Ltd v Umunna [1986] BCLC 460
Ixora Trading Incorporated and another v Jones and another [1990] FSR 251
JA Mont (UK) Ltd v Mills [1993] IRLR 172
Johnson & Bloys (Holdings) Ltd and another v Wolstenholme Rink plc and another [1987] IRLR 499
Lancashire Fires Ltd v SA Lyons & Co Ltd [1997] IRLR 113
Lansing Linde Ltd v Kerr [1991] IRLR 80
Laughton and another v Bapp Industrial Supplies Ltd [1986] IRLR 245
Lock International plc v Beswick and others [1989] IRLR 481
Lux Traffic Controls Ltd v Healey and another 24.11.93, Opinion of Lord Abernethy
Macmillan Inc v Bishopsgate Investment Trust plc and others [1993] IRLR 393
Malik and another v Bank of Credit and Commerce International SA [1997] IRLR 462
Marshall v Industrial Systems & Control Ltd [1992] IRLR 294
Newns v British Airways plc [1992] IRLR 575
Nova Plastics Ltd v Froggatt [1982] IRLR 146
Nottingham University v Fishel and another [2000] IRLR 471
Poeton Industries Ltd and another v Horton and another 26.5.2000 Court of Appeal
Printers and Finishers Ltd v Holloway and others
PSM International plc and another v Whitehouse and another [1992] IRLR 279
Reading v AG [1951] AC 507
Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134
Robb v Green [1895] 2 QB 1; [1895] 2 QB 315 (CA)
Roger Bullivant Ltd and others v Ellis and others [1987] IRLR 491
Saatchi & Saatchi Company plc and others v Saatchi and others 13.2.95 Chancery Division
Saltman Engineering Co Ltd and others v Campbell Engineering Co Ltd [1963] 3 All ER 413
Sanders v Parry [1967] 2 All ER 803
Searle & Co Ltd v Celltech 30.1.81 Chancery Division
Skyrail Oceanic Ltd t/a Goodmos Tours v Coleman [1980] IRLR 226
Soros and Soros v Davison and Davison [1994] IRLR 264
Swain v West (Butchers) Ltd [1936] 3 All ER 261
Symbian Ltd v Christensen 8.5.2000 Chancery Division; [2001] IRLR 77 (CA)
Sybron Corporation and another v Rochem Ltd and others [1983] IRLR 253
Terrapin Ltd v Builders' Supply Co (Hayes) Ltd and others [1967] RPC 375
The Distillers Company (Bottling Services) Ltd v Gardner [1982] IRLR 47
The Maintenance Co Ltd v Dormer [1982] IRLR 491
Thomas Marshall (Exports) Ltd v Guinle [1978] IRLR 174
Ticehurst and another v British Telecommunications plc [1992] IRLR 219
Tither Barn Ltd v Hubbard 7.11.91 EAT 532/89
Universal Thermosensors Ltd v Hibben and others [1992] 3 All ER 257
Vokes Ltd v Heather [1945] 62 RPC 135
Wallace Bogan & Co v Cove and others [1997] IRLR 453
Wessex Dairies Ltd v Smith [1935] 2 KB 80